The Fair Housing Act After Inclusive Communities: Why One-Time Land-Use Decisions Can Still Establish a Disparate Impact
Abstract
The Fair Housing Act (FHA) is a civil rights statute that prohibits housing discrimination against several protected classes. One theory of liability under the FHA is disparate impact, in which a plaintiff alleges that the defendant’s policy or practice, although facially neutral, nevertheless has discriminatory effects because it disproportionately negatively affects a protected class. In its 2015 opinion, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Supreme Court affirmed that the FHA includes disparate impact liability but also potentially limited its applicability—the Court distinguished between a defendant’s policy and a one-time decision by a defendant, hinting that the latter might not be able to substantiate a disparate impact claim.
This Comment argues that such a distinction is unfounded. One-time land-use decisions should not be categorically excluded from disparate impact liability under the FHA for three reasons. First, one-time employment decisions may serve as the basis for disparate impact liability under two analogous civil rights statutes—Title VII and the Age Discrimination in Employment Act—indicating that the same is true for one-time land-use decisions under the FHA. Second, the distinction between a policy and a one-time decision is untenable and provides little guidance for courts. Third, seminal appellate court cases which first established disparate impact liability under the FHA involved one-time land-use decisions, indicating that such decisions constitute the heartland of disparate impact theory.
The Comment concludes by providing further clarity about which particular one-time land-use decisions should enable litigants to establish successful disparate impact claims. It argues that claims based on zoning decisions and closures of residential buildings should be per se permitted, but that other claims may be less successful or altogether excluded. Ultimately, absent the inclusion of one-time land-use decisions as a basis for disparate impact liability, the FHA will lose much of its power as a tool to combat residential discrimination, segregation, and inequality in the land-use context.